Harlem Real Estate LLC v New York City Economic Dev. Corp.

Harlem Real Estate LLC v New York City Economic Dev. Corp. 2013 NY Slip Op 07816 Decided on November 21, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 21, 2013
Gonzalez, P.J., Tom, Renwick, Freedman, Clark, JJ.
11151N 111768/06

[*1]Harlem Real Estate LLC, et al., Plaintiffs-Appellants,

v

New York City Economic Development Corporation, et al., Defendants-Respondents.




Gleich, Siegel & Farkas LLP, Great Neck (Stephan B. Gleich
of counsel), for appellants.
Michael A. Cardozo, Corporation Counsel, New York (Alan H.
Kleinman of counsel), for respondents.

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered July 11, 2012, which granted defendants' motion to amend their answer to assert several counterclaims and denied plaintiffs' cross motion seeking, inter alia, to dismiss defendants' counterclaims and to preclude defendants from offering evidence in support of their counterclaim alleging breach of contract, unanimously affirmed, without costs.

The motion court properly granted defendants' request for leave to amend the answer to add counterclaims seeking, inter alia, repayment for work performed to maintain the property in a safe condition while plaintiffs remained in possession of the property after the time of the original answer. Plaintiffs' argument that the alleged damages occurred after defendants had issued a default notice to plaintiff and thus title had reverted to defendants is unavailing. During that relevant time period, plaintiffs had posted an undertaking, obtained a stay, remained in possession and contested defendants' right to retake title in this action. Plaintiffs failed to demonstrate prejudice or otherwise show that the proposed amendment is palpably improper or insufficient as a matter of law (see McGhee v Odell, 96 AD3d 449 [1st Dept 2012]).

The court also properly denied plaintiffs' cross motion to dismiss defendants' original counterclaim for breach of contract and to preclude defendants from offering evidence in support [*2]of that claim not already produced. Plaintiffs did not show that the production of additional documents in support of the claim would be improper, or that the subsequent sale of the property was sufficient to cover the alleged damages.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 21, 2013

CLERK